Has SC Rendered Itself Impotent In Justice K S Karnan Contempt Case? 

The seven-judge Supreme Court bench headed by Chief Justice of India J S Khehar appears to be giving recalcitrant judge K S Karnan a very long rope. The bench had issued a notice of contempt to Justice Karnan, who was transferred to the Calcutta High Court after he began consistently maligning judges of the Madras High Court as casteist, and asked to appear before the bench on Monday (13 February). When he failed to do so, the court gave him time till 10 March to appear, but one cannot be sure he will do so.

In fact, a few days ago he upped the ante when he wrote a four-page letter to the Supreme Court alleging bias. He claimed that the court’s very act of issuing a contempt notice was tantamount to a crime against him, a Dalit, and thus the court could be charged under the SC and ST (Prevention of) Atrocities Act.

The Times of India quotes him as saying: “The suo motu order against me, a Dalit judge, is unethical and goes against the SC and ST (Prevention of) Atrocities Act. It is certainly a national issue and a wise decision would be to refer the issue to the House of Parliament.”

Now we know what he is trying to do: shift the focus from his own continuing misconduct to his own tale of victimhood, where politicians will have to take a stand. If the debate moves to the political plane, all kinds of passions can be raised by politicians playing to the Dalit vote bank gallery. One cannot predict which way parliament will swing if push comes to shove in Justice Karnan’s case. Under the Constitution, judges of the higher judiciary can be removed only by impeachment in parliament.

Under Article 217(b) of the Constitution, high court judges can be removed from office in the same way that Article 124(4) prescribes for the removal of Supreme Court judges. Article 124(4) says “a judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each house of Parliament supported by a majority of the total membership of that House and by a majority not less than two-thirds of the members of the house present and voting…”. And impeachment proceedings can begin only if they have the support of 50 members of the Rajya Sabha of 100 of the Lok Sabha.

The Supreme Court is obviously in a bind because Justice Karnan has clearly crossed the line of tolerance repeatedly, but it is itself not in a position to remove him. At best, it can recommend his removal to Parliament after due process, but this is precisely what Justice Karnan wants – to play to the political gallery in the hope that invertebrate politicians will chicken out of impeaching him.

Two things are worth pointing out here.

First, removing a judge when his transgressions are manifest should not always require parliament scrutiny. The fact that Justice Karnan has repeatedly questioned the integrity of the higher judiciary and even the Supreme Court by alleging bias without producing proof is a clear case of contempt. You can criticise judgments, judges or courts all you want, but you cannot allege mala fide intentions behind a judgment or court stance without solid evidence. Justice Karnan has so far not provided an iota of evidence to claim that he is being targeted for his caste.

Clearly, in cases where transgressions are evident to an impartial enquiry panel, the need for bringing in parliament to impeach judges would involve needless politicisation. The Constitution needs to be amended to ensure that higher court judges can be removed through internally fair procedures within the judiciary. Ideally, both the processes – of shortlisting judges for appointment and removal of rogue judges – should be done by bodies outside the executive and the judiciary to carry a high degree of credibility. The judiciary can, of course, insist in a larger say on how these bodies should be constituted.

Second, while constitutional amendments can take time and serious dialogue between executive, opposition and the judiciary may not always result in consensus, in the interim, the court is not without options. If it can read the right to appoint judges through a collegium system in Article 124, which says nothing of the kind, surely it can find ways to get rid of judges who do not respect the Constitution.

A simple way out: retain Justice Karnan as judge, dock his pay, and ensure that he gets to hear no cases. And yes, in Justice Karnan’s case, the media can be asked to not give him oxygen. It may not be a gag order, but a Supreme Court suggestion that media interviews and statements against the judiciary by Justice Karnan can also invoke contempt proceedings is more likely to be respected than ignored.

The elephant in the room is clear: by seeking extraordinary powers to select judges as by itself, the court has effectively also rendered itself partially impotent in packing off rogue judges.